Tax Facts

9098 / What is alimony?

Editor’s Note: The tax treatment of alimony was fundamentally altered by the 2017 tax reform legislation. For tax years beginning after 2018, alimony payments are not deductible by the payor spouse and are not included in the income of the recipient spouse.



A payment received by (or on behalf of) a recipient spouse pursuant to a divorce or separation instrument (see below) executed after 1984 is an alimony or separate maintenance payment if:
(1)   The payment is made in cash to a (former) spouse recognized under applicable state law, including a same-sex spouse;1

(2)   The divorce or separation instrument does not designate the payment as not includable or deductible as alimony (prior to 2019);2

(3)   There is no liability to make the payments after the death of the recipient,3 (the Tax Court has held that “substitute” payments – i.e., post-death payments that would begin as a result of the death of the taxpayer’s ex-spouse, and would substitute for a continuation of the payments that terminated on her death, and that otherwise qualified as alimony – were not deductible alimony payments);

(4)   The individuals do not file a joint federal income tax return;

(5)   If the individuals are legally separated under a decree of divorce or separate maintenance, the spouses are not members of the same household at the time the payment is made.4

A divorce or separation instrument includes any decree of divorce or separate maintenance or a written instrument incident to such, a written separation agreement, or other decree requiring spousal support or maintenance payments.5 The failure of the divorce or separation instrument to provide for termination of payments at the death of the recipient will not disqualify payments from alimony treatment.6 However, if both the divorce or separation instrument and state law fail to unambiguously provide for the termination of payments upon death, such payments may be disqualified from receiving alimony treatment.7

Payment of housing costs generally does not qualify as alimony to the extent of the payor’s interest in the property (although payments do qualify as alimony to the extent of the payee’s interest in the property).8






1.  Rev. Rul. 58-66, 1958-1 CB 60; Rev. Rul. 2013-17, 2013-2 CB 201.

2.  See Richardson v. Comm., 125 F.3d 551 (7th Cir. 1997), aff’g T.C. Memo 1995-554; see also Let. Rul. 200141036.

3.  See, e.g., Okerson v. Comm., 123 TC 258 (2004).

4.  IRC § 71(b), prior to repeal.

5.  IRC § 71(b)(2), prior to repeal.

6.  See IRC § 71(b)(1)(D), prior to repeal; TRA ’86 Conf. Rept. at page 849.

7.  Hoover v. Comm., 102 F. 3d 842, 97-1 USTC ¶ 50,111 (6th Cir. 1996); Ribera v. Comm., TC Memo 1997-38. See Mukherjee v. Comm., TC Memo 2004-98; Lovejoy v. Comm., 293 F.3d 1208 (10th Cir. 2002); Thomas D. Berry v. Comm., 36 Fed. Appx. 400, 2002 U.S. App. LEXIS 10785 (10th Cir. 2002). But see Kean v. Comm., 407 F. 3d 186, 2005-1 USTC ¶ 50,397 (3d Cir. 2005); Michael K. Berry v. Comm., TC Memo 2005-91.

8.  Temp. Treas. Reg. § 1.71-1T(b); Let. Rul. 8710089.

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